2013 Supreme(SC) 1143

SUPREME COURT OF INDIA
Surinder Singh Nijjar, Fakkir Mohamed Ibrahim Kalifulla, JJ.
Re. Exploitation of Children in Orphanages in the State of Tamil Nadu – Petitioners
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CRL.) No.102 of 2007
Decided On : 16-12-2013

Headnote:Protection of Rights of Children from Sexual Offences Act, 2012—Section 28—Right of Children to Free and Compulsory Education Act, 2009—Commission for Protection of Child Rights Act, 2005—Section 17—Exploitation of children—Implementation of protective provisions—Many States and Union Territories have not complied with order passed by Apex Court—In many States, Chairman of Commission has not been appointed and in some other States even Members have not been appointed—Necessary rules and regulations have also not been framed—This would be sufficient justification for Apex Court to take a serious view and initiate appropriate proceedings for contempt of court against defaulting States and Union Territories—It is bounden duty of States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment in which children can bloom and subsequently become mature and responsible citizen of this country— States and Union Territories must realize that they have to operate under Constitution and have to be duty bound to act in accordance with provisions of Constitution— Chief Secretaries of all States to which notices have been issued in this matter shall file affidavit disclosing full details with regard to implementation of obligations specified under the three Acts.

       Held: It has been brought to our notice that inspite of the emphatic directions that have been issued by this court on 3rd January, 2013 directing all the States and the Union Territories to implement the protective provisions contained in the Protection of Rights of Children from Sexual Offences Act, 2012, the Right of Children to Free and Compulsory Education Act, 2009 and the Commission for Protection of Child Rights Act, 2005, many States and Union Territories have not complied with the same. By order dated 3rd January, 2013, we had also directed the States to file an affidavit indicating the time frame within which the State Commission for the protection of children would be established. By a subsequent order dated 7th February, 2013, further directions were issued to all the States and the Union Territories to comply with the obligations under the aforesaid three Acts, with regard to the establishment of protection institutions/implementation institutions, together with necessary Rules and Regulations. The aforesaid order was to be complied with within a period of three months from the date of receipt of the certified copy of the order. Sadly, we have to notice that inspite of the concern shown not only by this Court but also by the learned counsel appearing for the parties, little or no progress has been made in this regard. Although the affidavits have been filed indicating that the State Commissions have been established yet we find that such establishment is only on paper. In many States, Chairman of the Commission has not been appointed and in some other States even Members have not been appointed. This apart, necessary rules and regulations have also not been framed. This, in our opinion, would be sufficient justification for this Court to take a serious view and initiate appropriate proceedings for contempt of court against the defaulting States and the Union Territories.

       Given the lackadaisical manner in which the States and the Union Territories have responded to the concern shown by this Court in relation to the wholly unacceptable situation prevailing and to stamp out any further exploitation of children, it has become necessary to re-emphasize that it is the bounden duty of the States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment in which children who are the future of this country can bloom and subsequently become mature and responsible citizen of this country. We have been pained to notice the utterly callous attitude adopted by the States as well as the Union Territories. We, therefore, have no option at this stage but to issue some further mandatory directions to ensure that the exploitation of the children in all spheres of life is brought to an end with utmost expedition.

       We may notice at this stage that pursuant to our earlier directions Tripura, Dadar and Nagar Haveli, Lakshwadeep, Chandigarh, Andaman and Nicobar, Pondicherry and Daman and Diu have still not constituted State Commissions under Section 17 of the Commission for Protection of Child Rights Act, 2005. Some of the States which have established the State Commissions for the protection of children but have not completely constituted the same by either not appointing a Chairperson or Members are as under: Andhra Pradesh : The Commission exists only on paper as no Chairman/Member has been appointed. Chattisgarh is partially constituted as only Chairman has been appointed and the members have not been appointed. Gujarat : Although Chairman has been appointed yet no member or Secretary of the Commission has been appointed. Haryana : The situation is exactly the same as Gujarat, i.e. neither any Member nor Secretary has been appointed although the Chairman has been selected and appointed. Himachal Pradesh: Only a Member Secretary has been appointed. No Chairperson or Member has been appointed. Kerala - Again only a Secretary has been appointed but there is no Chairperson or Member appointed. Tamil Nadu has appointed a Chairperson but no Member has been appointed. Nagaland – Nothing has been done, i.e. no Chairperson or Member has been appointed. Similarly in U.P., nothing has been done as neither the Chairperson nor any Member has been appointed.

       This inaction of the States is in the teeth of the directions issued by this Court on 3rd January, 2013 and 7th February, 2013. We make it clear that this Court had taken notice of the exploitation of children and the deplorable conditions of children in various orphanages on the basis of the letter received, way back in the year 2007. Surely, the States and the Union Territories must realize that they have to operate under the Constitution and have to be duty bound to act in accordance with the provisions of the Constitution. Furthermore, each and every field which concerns the welfare and the protection of the children is covered by relevant legislation. The three prominent Acts have already been listed hereinabove.

       Keeping in view the aforesaid attitude of the States and the Union Territories, we direct that the Chief Secretaries of all the States to which notices have been issued in this matter shall file an affidavit within a period of eight weeks from the date of this order disclosing full details with regard to the implementation of the obligations specified under the three Acts.

       It is further directed that in the unlikely event of there being a non-compliance of any part of the directions issued by this Court, an officer of the rank of Principal Secretary of State Government shall remain present in person in the Court to clarify the issues with respect to the failure to implement the directions of the Court. If for any reason, the affidavit, as directed for, is not filed by the Chief Secretary before the next date of hearing, then also, the officer of the rank referred above shall remain present in person to explain the reasons for the State’s failure to submit the affidavit.

       Result: Writ Petition disposed of with directions.